Wednesday, June 10, 2009

On the destruction of local self-government/"establishment of an absolute tyranny over these states"

(Note: The entry has been updated below.)

By now you've all undoubtedly read about the Tenth Circuit U.S. Court of Appeals' ruling on the matter of a local Oklahoma county's display of the Ten Commandments on the courthouse lawn, brought about by a single, solitary individual who was (gasp!) "offended" by such display, thus filed a complaint.

Our frequent and insightful commenter, Chiu Chunling disagrees with me on this point, but I, nonetheless, cannot fail to mention the establishment of a constitutionally recognized dual citizenship in that pesky fourteenth amendment, U.S. Constitution which has provided the impetus for the federal courts to deem all governmental entities, down to the smallest most local level, mere agents and arms of the "federal" government.

Notwihstanding that, how anyone in his right mind can derive from the unambiguous phrase "Congress shall make no law respecting an establishment of religion..." that the judicial arm of the central government has any jurisdiction, and/or, authority over the procedures (or displays, as it were) of a county or municipal government (re: local government) is beyond me. Our county and municipal governments in the State of Oklahoma are not arms and agents of the federal authority in any event. Whenever they become that, tyranny reigns supreme.

But when a long train of abuses and usurpations pursuing invaribly the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty to throw off such government, and to create new guards for their future security.

But I've also quoted, many times, Hamilton from Federalist #84:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved''? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. (italics added)

If I thought there was the slightest chance in hell that any relief was to be had via our "illustrious" legislators in Congress whose prerogative it is to tell the federal courts to take a proverbial hike in this matter, you can bet I'd be doing all in my power to persuade them to do so. As it is, though, I think it's more or less a collaborative effort.

Posted below the fold is the NewsOK article on the subject.

DENVER — An appeals court ruled Monday a Ten Commandments monument on the Haskell County Courthouse lawn in Stigler violates the Constitution because its primary effect is to endorse religion.

The 10th U.S. Circuit Court of Appeals ruled 3-0 against the 8-foot-tall monument in a challenge brought by the American Civil Liberties Union of Oklahoma and a Haskell County resident who said it offended him.

The ACLU said the decision means "the county cannot continue to display it on the courthouse lawn. That said, nothing prevents any individual, group, or congregation from publicly displaying the same monument on their own property — and we would defend their right to do so.”

An attorney for the commissioners said the judges erred "for many reasons” in Monday’s decision, and he cited Supreme Court decisions in similar cases to support his conclusion. Attorney Kevin Theriot said he is recommending to the commissioners that they ask all 12 judges of the court to reconsider the decision of the three-judge panel.

Monument endorses religion, judges say

The monument was erected in 2004.
The Haskell County commissioners’ authorization of the monument "had the impermissible principal or primary effect of endorsing religion in violation of the Establishment Clause” of the Constitution, the judges wrote in a 52-page decision.

The establishment clause of the First Amendment says, "Congress shall make no law respecting an establishment of religion.” The judges said the Supreme Court has interpreted the clause to mean a government action must not have a primary effect of either advancing or inhibiting religion.

The judges wrote that, "in the unique factual setting of a small community like Haskell County,” the Christian origins of the monument’s erection "tended to strongly reflect a government endorsement of religion.”

Monday’s decision overturned a 2006 ruling by a Muskogee federal judge who concluded the commissioners did not overstep the constitutional line "demarcating government neutrality toward religion.”

Circuit Judge Jerome Holmes of Oklahoma City, a conservative appointed by former President George W. Bush, wrote the decision for the Denver-based appeals court.

End of initial entry.


Update: A short discussion on this topic has been had over at the Tenth Amendment Center where commenter Patrick Henry Lives first sounded the alarm. Also, he's written a supportive letter to the Haskell County Board of Commissioners and posted it in a comment under the thread. Here is the text of his letter:

Haskell County Board of Commissioners
E Main Street
County Courthouse
Stigler, OK 74462-2439
Phone: (918) 967-4352
Fax: (918)967-3290

Dear Board of Commissioners,

It was with saddened hearts that we learned of the recent ruling of the Tenth Circuit Court of Appeals declaring that the display of the Ten Commandments was an unconstitutional “endorsement of religion.” However, we were greatly encouraged by the statement of Commissioner Mitch Worsham indicating it was your intention not to obey or to take the monument down. We write to strengthen and confirm you in that resolve.

It has been the sovereign right of the People of the several States to acknowledge God in our public places since before the Pilgrims landed on Plymouth Rock. All of our nation’s organic documents acknowledge Christ and God. This is historically true. The Tenth Amendment reserves to the States and to their peoples all powers not given to the federal government nor prohibited by the Constitution to them. The First Amendment prohibition against an Establishment of Religion applies by its express terms only to Congress. The usurpation of reserved States Rights by liberal, activist judges cannot override the written Constitution nor can it obviate our duty before the Majesty in Heaven. We must obey God more than men. We implore you not to yield to spiritual wickedness in high places by surrendering your ground.

Oklahoma recently passed a Tenth Amendment Resolution claiming sovereignty under the U.S. Constitution. To date, 34 States have followed or are following Oklahoma’s example in telling the federal government to cease and desist it unlawful intrusion into and usurpation of reserved States’ Rights. To bring this matter to an immediate Constitutional confrontation and crisis, we encourage you to petition the Oklahoma Legislature to enact legislation making it unlawful for any officer of the State or any of its subdivisions to obey a federal court judgment purporting to invade reserved States’ Right by ordering the removal of any monument displaying the Ten Commandments, the Cross of Christ, or other acknowledgement of God as the Supreme Majesty in Heaven, who alone is the author of our being, the guardian of our liberties, and the wellspring of our happiness.

God bless you as you endeavor to persist in your moral courage and resolution to resist the unlawful acts of a usurping federal judiciary. Better that Oklahoma secede from the Union than to abandon its duty to its citizens and to God.


Patrick Henry Lives


Call Me Mom said...

Some of the comments at the bottom of the article are interesting. I am always discouraged when people reason based on the kind of God they want, rather than reality.

It's rather like someone saying they don't believe in trains and even if they did believe in trains, they couldn't possibly believe that a good train would kill someone who just happened to be standing on the tracks when it comes.

The reality is that it doesn't matter that you don't believe in trains. If you're standing on the tracks when one comes along you're going to get hit by it. It's not the train's fault that you chose to deny the evidence of your senses and stand on the tracks. It's not the train's fault that you decided to make up a train in your own mind that wouldn't be able to injure you even if you refuse to get off the tracks.
But that's off topic, my apologies.

I particularly liked the person who posted bits from all the state Constitutions recognizing and/or thanking God.

Call Me Mom said...

Or rather, I liked the comment, I don't know the person. lol

Flatulent Fuzz said...

I get confused, as to where the rights of the offended party supersede those of everyone else. Where did we get to the point, that only the rights of those that are offended are considered.

Anonymous said...

Well, the essential duality of citizenship is established by the federal system, and referenced in the Constitution (most notably article IV, 2.). You might have a point that the Bill of Rights not only established an anti-Federalist idea of the national government having any powers over private entities to be limited in the first place, but even created occasion for the use of such non-existent powers.

I am of the opinion that it was the intention of the advocates of most of the provisions in the Bill of Rights that they were to bind the behavior of the States by indicating certain rights enjoyed by the citizens. But the wording of the first amendment, in specifically mentioning Congress, seems aimed at the possibility of abuse of certain of the enumerated powers of Congress. Carefully reading those powers, I am minded to disagree with the assessment that Congress would otherwise have no pretext for making laws regulating the press, religion, and assembly.

I am far from convinced that these entities really needed to be protected from the depredations of Congress, were the federal character of the government maintained, but it was a point of contention at the time. But really it would have been more judicious to carefully limit the powers assigned to the national government, as a way to maintain its federal character. Given that the powers of Congress which would give them the ability to regulate presses, religions, and assemblies do not allow Congress to make any non-uniform regulations, I think the first amendment does no real good.

One good use of a Bill of Rights (to which the ten amendments so accepted are poorly suited) is to establish a bright-line for the people to determine that the government has transgressed its proper bounds. But that use is, I think, balanced out by the tendency of such a test to relax the vigilance due to the body of the Constitution. Given that the United States was to founded on the basis of an educated and free citizenry, the balance swings against a Bill of Rights.

But an enumeration of some specific rights guaranteed by the federal government against depredations by the States does seem necessary. To my way of thinking, the only really essential individual right which the Federal government ought to protect is the right to move one's person from one State to another. But, for various reasons, this right is nowhere to be found in the Constitution except by inference from such restrictions on it as are enumerated.

Even so, I am still not convinced that the failure of the republic can be attributed to any fault in the Constitution (including the first fifteen amendments). Every evil seems instead to spring from disregard for its provisions. I would include nearly all the abuses by the judiciary in this category, including this case.

The national judiciary power simply does not extend to this case under the provisions of the Constitution as written. It does not concern any act of Congress or provision of the Constitution or official of the national government. The Tenth Circuit or any other U.S. court simply has no jurisdiction to decide (or even hear) it. I cannot therefore blame the decision on any article or amendment, even those which I find useless or odious.

Terry Morris said...

Chiu wrote:

...Every evil seems instead to spring from disregard for its provisions. I would include nearly all the abuses by the judiciary in this category, including this case.

Chiu, I agree with your assessment. Ultimately it comes down to, as you say, a blatant disregard for the Constitution's provisions. At the same time we cannot deny the truth that "men disposed to usurp" are vigilant in searching for a "colorable pretext" on which to legitimize their intentions to destroy the foundation of our public and private liberties. Nor can we simply dismiss the fact that the SCOTUS is fond of citing the fourteenth amendment in its opinions as its basis for applying the Bill of Rights to the individual (See Kelo et al vs. New London, for example - Justice Ginsburg writing for the majority as I recall), thus establishing a precedent for the lower federal courts to throw down such repulsive rulings as the topic of this discussion.